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    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

    In March of 2002, then 79-year-old Virginia Tonelli and her husband, Alfred Tonelli went to the Lincoln School in Wyckoff to watch their granddaughter play soccer for a local club. Lincoln School is a public school owned and controlled by the Wyckoff Board of Education, a public entity. The Board allowed the soccer club to use the school’s soccer field under a policy that permits non-profit private groups to use school facilities to meet the needs of the community. After the game, as the Tonellis were walking through the school parking lot, Mrs. Tonelli tripped over a speed bump and fell, fracturing her hip. As a result of complications from her injuries, she died six weeks later.

    Alfred Tonelli, as administrator of his wife’s estate, sued the Board for negligently creating and maintaining the speed bump. The Board asserted that the Charitable Immunity Act exempted it from liability. Both parties moved for partial summary judgment on the issue of whether the Board was entitled to immunity under the Act. The trial judge agreed with the Board and Tonelli appealed. The Appellate Division reversed, concluding that the Legislature did not intend the Charitable Immunity Act did not intend to insulate purely public entities from liability.                                                         This Court granted the Board’s petition for certification.
    
HELD: The Charitable Immunity Act has no applicability to public entities supported entirely by tax dollars
And providing services to which the public is entitled as of right; our holding in Winters v. Jersey City is
reaffirmed .

First recognized in this country nearly 150 years ago, the doctrine of charitable immunity is rooted in English common law. The original rationale for immunizing charities from liability was preventing the diversion of charitable trust funds to non-charitable purposes in order to live up to the expectations of the benefactor; it would be contrary to the interests of society that funds dedicated to a charitable use be permitted to be diverted or diminished by the payments of judgments where suit is instituted by the beneficiary of the charity. A number of other cognate notions were identified as animating the charitable immunity doctrine, including the maintenance and preservation of charitable organizations and their funds for the purposes for which they were donated, the encouragement of altruistic activity, and the relief of government from the need to provide beneficient services. (pp. 5-6)

2. In 1958, in a trilogy of cases, this Court abolished charitable immunity after finding that the doctrine no longer comported with present day concepts of right, justice, and morality. This Court declared that such immunity was counter to widespread principles which fairly imposed liability on those who wrongfully and negligently injured others. (p. 6)                                                                                                    

3.    In direct response to this Court’s action, the Legislature promulgated the Charitable Immunity Act, essentially reinstating the common law doctrine as it had been judicially defined by the courts of this State; the effect of this statute was to reinstate the common law doctrine as it existed prior to its demise in 1958. Thus, the language of the Act should be construed to the end that the status quo be preserved. Only those classes of entities that were immunized under the common law remain within the sweep of the Act. However, as to those entities, the Act should be liberally construed to afford immunity. (pp. 6-7)

4. The Board maintains that it literally falls within the construct of a non-profit corporation, society or association as defined in the Act. It seems to us that the Board, as an instrumentality of the State itself, is intrinsically distinct from the statutorily denominated entities. But even if we were to conclude that the Board’s organizational structure does not clearly exclude it from the act, that would not be the end of the inquiry. (p. 8)

5. Only those entities that were immunized at common law are entitled to the protection of charitable immunity. We thus consider the legislative and judicial history of the Act to determine the status of a board of education at common law. Except for one exchange that tends to support the notion that public schools were within the contemplation of the drafters, the legislative history is sparse and uninformative. Of the myriad of judicial decisions involving negligence claims against public entities at common law, not one directly raised, let alone held that such an entity is entitled to charitable immunity. Over a quarter of a century ago, in Winters v. Jersey City, we said just that. (pp. 9-10)

6.    In Winters, we rejected an Appellate Division decision and adopted the dissenting opinion of Judge Lynch. In effect, Judge Lynch detailed what our own research has revealed – that public entities were never insulated from common-law tort liability by charitable immunity. Winters held that purely publicly funded governmental entities, created to provide services to which our citizens are entitled, were never within the contemplation of the Charitable Immunity Act. (pp. 10-13)

7.    Subsequent to Winters and despite the fact that the Legislature had occasion to revisit and amend the Act eight times, it did not alter the Winters principle that public entities are outside the reach of the Act. We take that acquiescence as further evidence that Winters was in accord with the Legislature’s intent. (pp. 13-14)

8.    Nothing in our recent decisions in O’Connell v. State and Ryan v. Holy Trinity Evangelical Lutheran Church has altered that landscape. What O’Connell recognized was that there are entities with mixed public and private elements, and that such hybrids need to be analyzed in light of the aims underlying charitable immunity. So analyzed, Montclair State University was allowed to invoke charitable immunity because it is not governmentally operated; it is not wholly supported by public funds; and it does not provide a service to which our citizens are entitled. Ryan simply held that a purely private entity with no public aspects satisfies the construct of enumerated organizations within the Act. (pp. 14-15)

9.    The public school board bears none of the indicea of a private charity. Its sole source of revenue is public funds. It is an instrumentality of the State that is obligated to meet the educational needs of the children. A public school board is simply not a charity within the meaning of the Charitable Immunity Act. The Charitable Immunity Act has no applicability to public entities supported entirely by tax dollars and providing services to which the public is entitled as of right. (pp. 16-17)     
    
    The judgment of the Appellate Division is AFFIRMED.

     CHIEF JUSTICE PORITZ and J USTICES LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-S OTO join in JUSTICE LONG’s opinion

SUPREME COURT OF NEW JERSEY
A- 105 September Term 2004


ALFRED TONELLI, Administrator Ad Prosequendum of the Estate of Virginia T. Tonelli, Deceased,

    Plaintiff-Respondent,

        v.

BOARD OF EDUCATION OF THE TOWNSHIP OF WYCKOFF, NEW JERSEY,

    Defendant-Appellant,

and

THE TOWNSHIP OF WYCKOFF, NEW JERSEY,

Defendant.

Argued September 28, 2005 – Decided December 28, 2005

On certification to the Superior Court, Appellate Division, whose opinion is reported at 373 N.J. Super. 421 (2004).

Jeffrey L. Shanaberger argued the cause for appellant (Hill Wallack, attorneys; Mr. Shanaberger and Marilyn S. Silvia, on the briefs).

Donald A. Kessler argued the cause for respondent (Schwartz Simon Edelstein Celso & Kessler, attorneys).

Susan S. Hodges submitted a brief on behalf of amicus curiae, New Jersey School Boards Association Insurance Group (Archer & Greiner, attorneys).

JUSTICE LONG delivered the opinion of the Court.

On this appeal, we are called upon to determine whether, in addition to the immunities provided in the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, a governmental entity -– in this case a public school board -- enjoys the benefits of the Charitable Immunity Act. N.J.S.A. 2A:53A-7 to -11. The trial judge answered that question in the affirmative and the Appellate Division reversed. We agree with the appellate panel and reaffirm our holding in Winters v. Jersey City, 63 N.J. 7, 8 (1973), that charitable immunity has no applicability to a governmental entity funded exclusively by the public and rendering services to which citizens are entitled as of right.
                    I
On March 24, 2002, then 79-year-old Virginia Tonelli and her husband, plaintiff Alfred Tonelli, went to the Lincoln School in Wyckoff to watch their granddaughter play soccer for a local club, the Wyckoff Torpedoes Soccer Club, Inc. (TSC). Lincoln School is a public school “owned and controlled” by defendant Wyckoff Board of Education (Board), a public entity. The Board has adopted a policy that permits non-profit private groups, like TSC, for a nominal fee, to make “full and proper use of the various school plants and facilities to meet the needs of the community.” Under that policy, the Board allowed TSC to use Lincoln School’s soccer field on the day in question.
    Following the soccer game, at about 2:00 p.m., the Tonellis headed toward their car. As they were walking through the Lincoln School parking lot, Mrs. Tonelli tripped over a speed bump and fell, severely fracturing her hip. As a result of complications from her injuries, Mrs. Tonelli died six weeks later.
    In September 2002, Alfred Tonelli, as Administrator ad Prosequendum of his wife’s estate, sued the Board for negligently creating and maintaining the speed bump. The Board’s answer asserted that, as a non-profit entity organized exclusively for educational purposes, the Charitable Immunity Act exempted it from liability.
Both parties moved for partial summary judgment on the issue of whether the Board was entitled to immunity under the Act. Tonelli relied on our decision in Winters, and on Hamel v. State, 321 N.J. Super. 67 (App. Div. 1999), and Gerber v. Springfield Board of Education, 328 N.J. Super. 24 (App. Div. 2000), Appellate Division decisions that held that local boards of education are not entitled to the protection of the Act. The Board countered that our recent decisions in O’Connell v. State, 171 N.J. 484 (2002), and Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333 (2003), overruled those prior opinions. The trial judge agreed with the Board and Tonelli appealed.
    The Appellate Division reversed, concluding that the Legislature did not intend the Charitable Immunity Act to insulate purely public entities, such as public school boards, from liability. Tonelli v. Bd. of Educ. of Twp. of Wyckoff, 373 N.J. Super. 421, 422 (App. Div. 2004). We granted the Board’s petition for certification, 183 N.J. 215 (2005), along with the application of the New Jersey School Boards Association Insurance Group to appear as amicus curiae.
                        II
    As might be anticipated, the parties’ arguments are rooted in the dueling opinions of the trial judge and Appellate Division. The Board contends that because it satisfies the literal language of the Act it is entitled to immunity, and that the Appellate Division’s contrary conclusion confounds our recent decisions in O’Connell and Ryan. Amicus, New Jersey School Boards Association Insurance Group supports that view, and argues that financial considerations warrant insulating Boards from liability.
    Tonelli counters that the Legislature never intended charitable immunity to be available to instrumentalities of the state, that affording such immunity to public school boards would violate the legislative intent that animates charitable immunity and that neither O’Connell nor Ryan compels a contrary conclusion.
                        III
    First recognized in this country nearly 150 years ago, “[t]he doctrine of charitable immunity is rooted in English common law.” Parker v. St. Stephens Urban Dev. Corp., Inc., 243 N.J. Super. 317, 321 (App. Div. 1990)(citations omitted); see also Restatement (Second) of Torts §895E (1979). The original rationale stated for immunizing charities from tort liability was preventing the diversion of “charitable trust funds to non-charitable purposes in order to live up to the reasonable expectations of the benefactor.” Parker, supra, 243 N.J. Super. at 321. As we later stated, “it would be contrary to the interests of society that funds dedicated to a charitable use be permitted to be diverted or diminished by the payments of judgments . . . where suit is instituted by the beneficiary of the charity.” Jones v. St. Mary’s Roman Catholic Church, 7 N.J. 533, 537-38 (1951).
    Over time, a number of other cognate notions were identified as animating the charitable immunity doctrine, including the maintenance and preservation of charitable organizations and their trust funds for the purposes for which they were donated, the encouragement of altruistic activity through private philanthropy, and the relief of the government from the need to provide beneficent services. Restatement (Second) of Torts, supra, §895E (1979). See also O’Connell, supra, 171 N.J. at 496 (“[T]he [Charitable Immunity Act’s] legislative history suggests that preservation of a charity’s assets was only one of a number of purposes propelling the [statute’s] enactment.”).
In 1958, however, in a trilogy of cases, this Court abolished charitable immunity after finding that the doctrine “no longer comported with present day concepts of right, justice and morality.” Parker, supra, 243 N.J. Super. at 322-23 (citing Benton v. Y.M.C.A., 27 N.J. 67, 69 (1958); Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 39 (1958); Dalton v. St. Luke’s Catholic Church, 27 N.J. 22, 24 (1958)). We declared that such immunity was “counter to widespread principles which fairly impose[d] liability on those who wrongfully and negligently injure[d] others.” Id. at 322 (quoting Collopy, supra, 27 N.J. at 47).
In direct response to our action, in 1959 the Legislature promulgated the Charitable Immunity Act, id. at 323, essentially “reinstating the common law doctrine as it had been judicially defined by the courts of this State.” O’Connell, supra, 171 N.J. at 489 (emphasis added)(quoting Wiklund v. Presbyterian Church of Clifton, 90 N.J. Super. 335, 338 (Cty. Ct. 1966)(citing Anasiewicz v. Sacred Heart Church, 74 N.J. Super. 532, 535 (App. Div.), certif. denied, 38 N.J. 305 (1962))). Stated differently, because “the verbiage employed [in the Act] closely parallels the cases in which the immunity rule was enunciated,” Parker, supra, 243 N.J. Super. at 324, “the effect of this statute was to reinstate the common law doctrine as it existed prior to its demise at the hands of the 1958 trilogy of Benton, Collopy and Dalton.” Id. at 323. Thus, the language of the Act should be construed “in light of stare decisis to the end that [the] status quo be preserved.” Parker, supra, 243 N.J. Super. at 324 (citing Anasiewicz, supra, 74 N.J. Super. at 535-36). Only those classes of entities that were immunized under common law remain within the sweep of the Act. However, as to those entities, the several provisions of the Act should be liberally construed to afford immunity. N.J.S.A. 2A:53A-10. That is the backdrop for our inquiry.

The moribund chimera of charitable immunity has no application to a government hospital. The anachronistically named Charity Hospital does not dispense charity but rather renders services to which qualified citizens are entitled as a matter of legal right; and it is supported not by alms but by taxes. Public hospitals, like public schools, are not charitable or eleemosynary institutions.

In terms particularly relevant to the issue before us, Judge Lynch observed:
If Section 8 is to be interpreted as applying to defendant municipality, then N.J.S.A. 24:53A-7 must be construed as affording total immunity to a Board of Education because it is organized “exclusively for educational purposes.” Such is not the law and, indeed, so far as I know, the contention has never been made. See Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N.J. 230, 236 (1968); Titus v. Lindberg, 49 N.J. 66, 77 (1967); and cf. Hartmann v. Maplewood School Transp. Co., 106 N.J. Super. 187 (Law Div. 1969), aff’d 109 N.J. Super. 497 (App. Div. 1970); Estelle v. Board of Ed, Red Bank, 26 N.J. Super. 9 (App. Div. 1953), modified on other grounds, 14 N.J. 256 (1954).

    SUPREME COURT OF NEW JERSEY

NO.     A-105    SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court    

ALFRED TONELLI, Administrator
Ad Prosequendum of the Estate
Of Virginia T. Tonelli,
Deceased,

    Plaintiff-Respondent,

        v.

BOARD OF EDUCATION OF THE
TOWNSHIP OF WYCKOFF, NEW
JERSEY,

    Defendant-Appellant,

        And

THE TOWNSHIP OF WYCKOFF, NEW
JERSEY,

    Defendant.

DECIDED December 28, 2005
    Chief Justice Poritz    PRESIDING
OPINION BY Justice Long    
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY    

CHECKLIST	AFFIRM
CHIEF JUSTICE PORITZ	X
JUSTICE LONG	X
JUSTICE LaVECCHIA	X
JUSTICE ZAZZALI	X
JUSTICE ALBIN	X
JUSTICE WALLACE	X
JUSTICE RIVERA-SOTO	X
TOTALS	7